An illustration of the UK Interest Rate Swap scandal: Green & Rowley v. RBS

England and Wales court of Appeal, case A3/2013/0138

Categories: Business Law
Typology: Case Law

The mis-sale of interest rate swaps (IRSs) from banks to small and medium businesses has given rise, in the years following the global financial crisis, to a brand new scandal. This has triggered, among other things, a number of legal disputes that are aptly represented by the recent case decided by the Court of Appeal in 2013, Green & Rowley v. Royal Bank of Scotland Plc (EWCA Civ 1197).  

Some of the legal issues that emerged in the context of the mis-selling scandal were dealt with in this case, most notably: a) poor disclosure on the part of banks of termination costs; b) the banks’ failure to ascertain customers’ understanding of product risks; c) the characterisation of sales as non-advised.

The facts of the dispute revolved around an IRS sold by RBS in 2005 to the claimants, in order to hedge their existing loan liabilities with the bank. The claimants alleged that they had entered into the IRS contract only after having been adequately informed about the swap products they were being offered at a meeting with the bank. At first instance, they alleged that RBS was liable for negligent mis-statement of information provided to them; that RBS gave negligent advice about the swap and its underlying risks; and in particular that it failed to properly inform about the swap’s termination costs.  The court at first instance dismissed the claims, on the ground that information about the termination costs was given by the bank and that likewise the drop in interest rate that occurred in 2008 (which essentially caused the claimants’ position on the swap to become unsustainable, and their willingness to terminate the deal) was “an unusual event and a theoretical risk and not one which needed to be positively stated”. The court further dismissed any advisory role of RBS, holding that the sale had been constructed as non-advised and therefore no duty of care of the bank to the customer was owed.

In Appeal, Green & Rowley’s arguments were firstly, that a duty of care at common law not to mis-state is co-extensive with the bank’s duty to comply with Conduct of Business Rules, even in a non-advised sale; and secondly, that at first instance the factual findings about the adequacy of the warnings on termination costs were incorrect. The Court of Appeal rejected the arguments. The judgment revolved around the claimants’ misconception that the existence of Conduct of Business Rules could trigger co-extensive duty of care at common law. The court’s view was further corroborated by the Financial Conduct Authority’s (FCA) submission which clarified the correct procedure for a claim to be brought by a “private person” under Conduct of Business Rules.

By dismissing the claim, the Court of Appeal effectively refused to broaden the category of individuals who can bring an action for breach of Conduct of Business Rules; it also confirmed that these Rules can only inform relevant common law duties as long as the sale is conducted on an advisory basis, as opposed to an execution only basis. In other words, as long as banks characterise contracts as non-advisory, as in this case, courts in England and Wales will be reluctant to infer a common law duty of care owed by the bank.

 (Altalex, 10 march 2014. Article by Vincenzo Bavoso) 


Neutral Citation Number: [2013] EWCA Civ 1197
  Case No: A3/2013/0138

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
His Honour Judge Waksman QC
[2012] EWHC 3661 (QB)

  Royal Courts of Justice
Strand, London, WC2A 2LL
  09/10/2013

B e f o r e :

LORD JUSTICE RICHARDS
LADY JUSTICE HALLETT
and
LORD JUSTICE TOMLINSON
____________________

Between:
John Green and Paul Rowley
Appellants

- and -

The Royal Bank of Scotland plc
(Registered in Scotland 90312)
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

David Berkley QC and John Virgo (instructed by Clarke Willmott LLP) for the Appellants
Andrew Mitchell QC (instructed by Dentons UKMEA LLP) for the Respondent
Nicholas Peacock QC and Catherine Addy (instructed by the Financial Conduct Authority) for the FCA
Hearing date : 29 July 2013

____________________

Crown Copyright ©

Lord Justice Tomlinson :

On 25 May 2005 the Respondent bank, The Royal Bank of Scotland plc, hereinafter "the Bank", sold to the Appellants, John Green and Paul Rowley, an interest rate swap, hereinafter "the Swap", as a form of hedge against their existing loan liabilities to the Bank. Messrs Green and Rowley allege that the swap was, to use the current expression, "mis-sold" to them by the Bank. The judge below, His Honour Judge Waksman QC, sitting in the Mercantile Court at Manchester, disagreed. Hence this appeal.

At the relevant time the conduct of the Bank in either arranging a swap transaction or advising upon it was governed by the then current Conduct of Business, hereinafter "COB", Rules promulgated by the Financial Services Authority pursuant to its rule-making powers conferred by the Financial Services and Markets Act 2000.

Section 150 of the Financial Services and Markets Act 2000 provides, so far as material, as follows:-

"150 Actions for damages.
(1) A contravention by an authorised person of a rule is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.
. . .
(3) In prescribed cases, a contravention of a rule which would be actionable at the suit of a private person is actionable at the suit of a person who is not a private person, subject to the defences and other incidents applying to actions for breach of statutory duty.
. . .
(5) "Private person" has such meaning as may be prescribed."
The Bank was for these purposes an "authorised person" and the Bank conceded for the purposes of this action that Messrs Green and Rowley were "private persons".

The COB Rules said to be relevant are:-

"COB 2.1 Clear, fair and not misleading communication
Application
COB 2.1.1 R (1) This section applies to a firm when it communicates information to a customer in the course of, or in connection with, its designated investment business.
(2) This section does not apply to a firm when it communicates a financial promotion in circumstances in which COB 3 (Financial promotion) applies to the firm.
Purpose

COB 2.1.2G The purpose of this section is to restate, in slightly amended form, and as a separate rule, the part of Principle 7 (Communications with clients) that relates to communication of information. This enables a customer, who is a private person, to bring an action for damages under section 150 of the Act to recover loss resulting from a firm communicating information, in the course of designated investment business, in a way that is not clear or fair, or is misleading.
Clear, fair and not misleading communication
COB 2.1.3 R When a firm communicates information to a customer, the firm must take reasonable steps to communicate in a way which is clear, fair and not misleading.
COB 2.1.4 G When considering the requirements of COB 2.1.3 R, a firm should have regard to the customer's knowledge of the designated investment business to which the information relates.
COB 2.1.5 G COB 2.1 embraces all communications with customers, for example: client agreements, periodic statements, financial reports, telephone calls and any correspondence which is not a financial promotion to which COB 3 (Financial promotion) applies. Firms should note the requirements of COB 3.8.4 R relating to non-real timefinancial promotions and COB 3.8.22 R relating to real timefinancial promotions.
. . .
COB 5.4 Customers' understanding of risk
Application
COB 5.4.1 R This section applies to a firm that conducts designated investment business with or for a private customer but does not apply to a firm when providing basic advice on a stakeholder product.
Purpose
COB 5.4.2 G Principle 7 (Communications with clients) requires a firm to pay due regard to the information needs of its clients and communicate information to them in a way that is clear, fair and not misleading. Principle 9 (Customers: relationships of trust) requires a firm to take reasonable care to ensure the suitability of its advice and discretionary decisions. The purpose of this section is to ensure that a firm takes reasonable steps to ensure that a private customer understands the nature of the risks inherent in certain transactions.
Requirement for risk warnings
COB 5.4.3 R A firm must not:
(1) make a personal recommendation of a transaction; or
(2) act as a discretionary investment manager, or
(3) arrange (bring about) or execute a deal in a warrant or derivative; or
(4) engage in stock lending activity;
with, to or for a private customer unless it has taken reasonable steps to ensure that the private customer understands the nature of the risks involved."
The designation "R" indicates that the relevant provision is a rule – those provisions preceded by the designation "G" are guidance as to the purpose and application of the rule.
For the purposes of these provisions the Bank was a firm engaged in designated investment business and Messrs Green and Rowley were private customers.

Mr Green was at the material time an estate agent and residential lettings agent in Lytham St Annes. Mr Rowley was at the material time a hotelier and property developer in the same town. They carried on business together in partnership buying and developing commercial property. The judge described them as intelligent and experienced businessmen. He also observed that whilst they were not previously versed in swaps, this particular swap was very straightforward and they would have had no difficulty in understanding it or, if they did not, they would have asked, by which he meant I think that they would have asked the Bank in the circumstances hereinafter described. They also had access to their own independent financial and legal advice from accountants and solicitors.

As at May 2005 Messrs Green and Rowley had two loans from the Bank secured on their properties. The precise details of the loans do not matter. Although it is an over-simplification, it can for present purposes be assumed that the loan was of £1.5 million for a term of fifteen years on an interest only basis at 1.5% above base rate. Base rate as at 25 May 2005 was 4.75%.

Messrs Green and Rowley allege that both prior to and at a meeting on 19 May 2005 they were told by a Mrs Kay Gill and a Mrs Karen Holdsworth of the Bank that the Swap was a good idea and that they should enter into it. Mrs Gill was a Senior Commercial Manager looking after a specific portfolio of business customers, including Messrs Green and Rowley. Mrs Holdsworth was an Area Manager specialising in the arrangement of interest rate management products of which the Swap was one.

The Swap was executed on 25 May 2005. It was preceded by the Bank sending to Messrs Green and Rowley what the judge described as the Terms Letter, which Mr Rowley countersigned as having been read and understood, together with its enclosures. The enclosures included a copy of the Bank's Terms of Business which stated at paragraph 3.2 that the Bank would provide the customer with dealing services on an execution only basis. At paragraph 3.3 thereof the Bank stated that it would not provide the customer with advice on the merits of a particular transaction. Schedule 1 to the Terms Letter, specifically acknowledged by Mr Rowley as having been read and understood, was a Risk Warning Notice in the form then prescribed by the Financial Services Authority. It is unnecessary for the purposes of this judgment to discuss the question whether the provision of a notice in this form amounts to compliance with COB Rule 5.4.3. It is equally unnecessary to discuss whether, on the assumption that provision of the Risk Warning Notice is not or not necessarily sufficient compliance therewith, the Bank did on the facts of this case take reasonable steps to ensure that Messrs Green and Rowley understood the nature of the risks involved in entering into the Swap. The judge held that it did, although that conclusion was equally unnecessary to his decision, as I shall describe.

An interest rate swap is or can serve as an interest rate hedging product. The Swap executed on 25 May 2005 was independent of the loan, although its purpose was to protect Messrs Green and Rowley against the risk of base rate increasing during the term of the loan. An increase in base rate would result in the variable interest rate under the loan, base rate plus 1.5%, increasing accordingly. Both parties would have assumed in 2005 that the margin above base rate would remain constant during the term of the loan. Indeed, the margin was initially fixed, although later agreed variations to the terms of the loan opened up the prospect of an increase in margin being imposed on review or roll-over. But on the assumption that the margin remained fixed at 1.5%, the Swap effectively converted the variable rate of interest under the loan to a fixed rate, at any rate for the term of the Swap. It did so by means of a very straightforward transaction. The Swap was based upon a notional sum, £1.5 million, which happened to be the principal amount of the loan in question. A term was selected of ten years. It could have been for the same period as the outstanding term of the loan, but it was Messrs Green and Rowley's choice to make it shorter. The property market was then buoyant. Their view was that within ten years they would sell or refinance their properties so that there was no need to lock themselves into a fifteen year swap. They also expected their debt to increase rather than decrease over this period as they wished and expected to acquire more properties. A fixed rate was set and applied to the notional amount. It was 4.83%, only fractionally more than the then prevailing base rate. The Swap provided for quarterly net payments between the Bank and the counterparty, here Messrs Green and Rowley. Where base rate exceeds 4.83%, the Bank pays the counterparty the amount of the difference between the fixed rate and base rate as applied to the notional amount, £1.5 million, over the period in question. Where base rate is lower than 4.83%, the counterparty pays the Bank the amount of the difference calculated in the same way. Ignoring the fractional difference between 4.75%, base rate prevailing as at 25 May 2005, and 4.83%, the fixed rate, this mechanism provides an effective hedge against any increase in base rate during the ten year term. If interest rates went up, whilst Messrs Green and Rowley would pay more under the variable rate loan, they would recoup the enhanced payment from the Bank under the Swap. The obvious corollary of course is that if base rate went down, Messrs Green and Rowley would be worse off than had they not entered into the Swap. That is because whilst they would pay less interest under the variable rate loan, they would have to disgorge that saving to the Bank under the Swap. Hence their liability to pay interest to the Bank under the loan effectively became fixed for the term of ten years. It is of the essence of a fixed rate loan that a borrower is protected against increases in base rate but does not get the benefit of a decrease in base rate. Both the Bank and Messrs Green and Rowley thought at the time that it was a reasonable view that interest rates would come down in the short term and thereafter rise. Neither foresaw the market convulsions of 2008.

In fact base rate remained fairly flat until about June 2006 when it started to rise significantly. Between then and October 2008 Messrs Green and Rowley did well out of the Swap. They were, as it is said, "in the money". But after October 2008, as interest rates fell to an all time low of 0.5% by 5 March 2009, they fared correspondingly badly. But it is necessary to bear in mind that "doing well" and "doing badly" in this context merely reflects the answer to the question whether the market movements, from whose effect Messrs Green and Rowley were, so far as concerns the loan, now insulated, had been up or down. Through thick and thin the Swap achieved its purpose of, in effect, fixing the interest rate payable under the loan.

In early 2009 Messrs Green and Rowley wished to restructure their partnership with Mr Green taking most of the properties and with them most of the debt. This meant also revising the Swap, which still had six years to run with the Bank considerably "in the money". Clause 7 of the Swap deals with the calculation of the payment required for early termination. At the meeting on 19 May 2005 Messrs Green and Rowley were given a copy of the Bank's brochure or pamphlet entitled "Interest Rate Hedging Solutions: Reducing the uncertainty of future interest rate movements". As is explained in that document:-

"If interest rate derivative contracts are closed before their maturity, breakage costs or benefits may be payable. The value of any break cost or benefit is the replacement costs of the contract and depends on factors on closeout that include the time left to maturity and current market conditions such as current and expected future interest rates. This is illustrated below.
There will be a breakage cost to you if the interest rates prevailing on closeout are lower than the fixed rate of the Swap (that you are paying) or below the floor rate of the collar. There will be a benefit to you if prevailing interest rates are higher than the fixed rate of the Swap (that you are paying) or above the cap rate of the collar."
The reference to cap and collar is irrelevant in the context of this Swap which contained neither feature. In early 2009 the cost to Messrs Green and Rowley of early termination of the Swap was calculated as £138,650. This came as a shock to them as evidently it did to Mrs Gill.
On 25 May 2011 Messrs Green and Rowley issued a Claim Form against the Bank. Many allegations were made in the Amended Particulars of Claim. Most failed at trial in the light of the judge's findings of fact which are largely unchallenged. The allegation which Messrs Green and Rowley wish to pursue on this appeal is that compliance with the COB Rules required the Bank not only to warn that break costs could be substantial but also to explain clearly and fairly the true potential magnitude of those costs so that they as the potential counterparty could understand it. In that duty, so Messrs Green and Rowley allege, the Bank failed. There was, it is said, inadequate disclosure of break costs. As I have already indicated, the judge disagreed. If it becomes relevant, the Appellants on this appeal challenge the judge's finding as to the adequacy of the warning as to break costs.

As noted above, s.150 of the Financial Services and Markets Act 2000 renders contravention of the COB Rules by the Bank actionable at the suit of Messrs Green and Rowley. So if in the opinion of the court the Bank failed to take reasonable steps to make sure that Messrs Green and Rowley understood the nature of the risks involved in committing themselves to the Swap, or failed to take reasonable steps to communicate with them in a way which was clear, fair and not misleading, Messrs Green and Rowley have without more a cause of action for breach of statutory duty, or a cause of action akin thereto, subject only to questions of causation, reliance and proof of loss. This cause of action was not however pursued before the judge. It was abandoned before trial on the footing that it was time-barred, the allegations being focused on what was said or not said at the meeting on 19 May 2005 and the Claim Form having been issued more than six years thereafter on 25 May 2011, the six year anniversary of the execution of the Swap. Before us it was said by Mr David Berkley QC, for Messrs Green and Rowley, that the concession made below by his junior, Mr John Virgo, who then appeared alone, was "likely" to be wrong because any breach of duty associated with the arrangement and execution of the transaction would continue until the execution of the transaction itself. This notwithstanding, no attempt was made by Messrs Green and Rowley to resile from the concession made below, and accordingly we are not called upon to express a view one way or another on the question when time began to run. However this background history provides for the Appellants a distinctly unpromising start to their quest to persuade the court that there exist at common law duties of care co-extensive with those prescribed by the COB Rules, since one justification for the finding of such co-extensive, or as it is sometimes put by the Appellants, concurrent duties, the one rooted in statute and the other rooted in the common law, is said to be the more generous limitation period available in respect of the latter.

The judge found in terms that no "recommendation or advice for the Swap was given at the meeting" of 19 May 2005. He also found that the Bank did not assume "an advisory duty of care before the meeting" and that no such duty arose as a result of anything said by Mrs Gill or Mrs Holdsworth at the meeting. There is no formal appeal against those conclusions.

The judge also assumed, uncontroversially, that the Bank owed to Messrs Green and Rowley a duty to take care when making statements in relation to which it knew or ought to have known that Messrs Green and Rowley would rely upon its skill and judgment – the duty discussed in Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465. This was in relation to what was called at trial the "Information Claim". So far as concerned the suggestion by the Appellants that the COB Rules informed the content of this duty the judge observed, rightly in my view, although I paraphrase his language, that the Hedley Byrne duty does not comprise a duty to give information unless without it a relevant statement made within the context of the assumption of responsibility is misleading. Thus insofar as COB Rule 2.1.3 refers to a duty to take reasonable steps not to mislead, this is comprised within the common law duty, but insofar as it refers to a duty to take reasonable steps to communicate clearly or fairly, this introduces notions going beyond the accuracy of what is said which is the touchstone of the Hedley Byrne duty. The duty imposed by COB Rule 5.4.3 to take reasonable steps to ensure that the counterparty to a transaction understands its nature the judge regarded, again rightly in my view, as well outside any notion of a duty not to mis-state, as he characterised the Hedley Byrne duty to be. Accordingly, the judge did not regard the content of the Bank's common law duty in relation to the accuracy of its statements as in any relevant manner informed by the content of the COB Rules.

By contrast, the judge was prepared to recognise that had the Bank undertaken an advisory duty, the content of that duty would have been in part informed by the content of COB Rules 2.1.3 and 5.4.3. That approach has been endorsed on at least four occasions by first instance judges, the first of them His Honour Judge Raymond Jack QC putting it pithily in Loosemore v Financial Concepts [2001] Lloyds PNLR 235 at 241 where he pointed out that the skill and care to be expected of a financial advisor would ordinarily include compliance with the rules of the relevant regulator. See also per His Honour Judge Havelock Allan QC in Seymour v Ockwell [2005] PNLR 758 and by the same judge in Rubenstein v HSBC [2011] EWHC 2304 (QB). In Shore v Sedgwick Financial Services Limited [2007] EWHC 2059 (QB) Beatson J put it this way:-

"It is common ground that [the financial advisors] owed [the Claimant] a common law duty to act with the skill and care to be expected of a reasonably competent financial advisor. In determining the extent of this duty, it is useful to start with the requirements of the relevant regulatory regime, in this case the SIB principles and the IMRO rules. This is because the skill and care to be expected of a reasonably competent financial advisor ordinarily includes compliance with the relevant regulatory rules."
The argument on this appeal is a narrow one, albeit the Appellants attempted to widen it beyond the confines of their Grounds of Appeal. Mr Berkley submitted that "conventional jurisprudence holds that breach of a statutory duty is actionable as a breach of a concurrent common law duty of care where either the purpose of the statute is to confer protection on a defined class of individuals (sounding in an entitlement to damages) or (in like circumstances) where the statutory duty has been carelessly executed." For this proposition he relied upon the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730.

Mr Berkley submitted that where a bank undertakes a regulated activity, here arranging or executing a relevant transaction, in circumstances where failure to comply with a statutorily imposed regulation, here COB Rule 5.4.3, is likely to give rise to damage to the counterparty, robbing it of its informed choice, a duty of care arises at common law which is co-extensive or concurrent with that imposed by statute.

Mr Virgo, following in circumstances where it was apparent that his leader did not have the ear of the court, suggested that the situation was one in which the court should by reliance on one or other of the conventional formulations of the incremental approach recognise the existence of a duty at common law, incremental to the Hedley Byrne duty, the content of which is informed by the statutorily imposed rules.

Mr Virgo's argument is an attempt to re-open the argument which failed at trial in the light of factual findings against which there is no appeal. The Bank did not undertake to advise upon the transaction and it gave no advice. The circumstances were not such as could give rise to any duty at common law to advise.

Mr Berkley's argument is in my view misconceived. It amounts to saying that the mere existence of the COB Rules gives rise to a co-extensive duty of care at common law. This proposition invites the question "why?" Mr Berkley accepted that not every statutory duty will generate a co-extensive duty of care at common law. It is no answer to the question what feature of the instant statutory duty, if there is a relevant statutory duty, gives rise to a co-extensive duty of care at common law to assert, as Mr Berkley did, that the Bank was undertaking a regulated activity in circumstances where a failure to comply with COB Rule 5.4.3 would be likely to cause loss. Parliament has provided, by s.150 of the Financial Services and Markets Act 2000, a remedy for contravention of the rule in the shape of an action for breach of statutory duty, or at any rate an action akin thereto. There is no feature of the situation which justifies the independent imposition of a duty of care at common law to advise as to the nature of the risks inherent in the regulated transaction. As Mr Andrew Mitchell QC for the Bank succinctly put it, the Bank did not cross the line which separates, on the one hand, the activity of giving information about and selling a product and, on the other hand, the activity of giving advice. Absent that feature, there is neither justification nor need for the imposition of a common law duty independent of but co-extensive with the remedy provided by statute.

Mr Mitchell also pointed out, correctly in my view, that neither COB Rule 2.1.3 nor COB Rule 5.4.3 in fact provides any pointer at all as to the assumption of a duty of care to advise or as to the appropriateness of imposing such a duty since both impose statutory duties which are owed by firms which are in a non-advisory or execution-only relationship with their counterparty as well as by firms which have undertaken an advisory role. This is most clearly demonstrated by COB Rule 5.4.3, which imposes the duty to take reasonable steps to ensure that the private customer understands the nature of the risks involved upon both a firm which makes a personal recommendation of a transaction, sub-paragraph (1), and upon a firm which arranges (brings about) or executes a transaction, sub-paragraph (3).

Lord Browne-Wilkinson in X at page 730 said that:-

"Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful."
Lord Browne-Wilkinson explained how a category (A) claim arises in this way at page 731:-

"The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was
imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398: Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.2) [1982] A.C. 173. However, the mere existence of some other statutory remedy is not necessarily decisive."
The absence of any general rule by reference to which it can be decided whether a statute creates a right of action for breach of statutory duty presents no difficulty in this case since s.150 of the Financial Services and Markets Act 2000 expressly provides a private law cause of action. It can perhaps be described as an express cause of action for breach of statutory duty.

Category (B) does not assist the appellants. As Lord Browne-Wilkinson explained, at page 732:-

"(B) The careless performance of a statutory duty - no common law duty of care.
This category comprises those cases in which the plaintiff alleges (a) the statutory duty and (b) the "negligent" breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word "negligent" in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (Category (A) above) or a common law duty of care (Category (C) below)."
This case is not concerned with the careless performance of a statutory duty, since the Bank had no duty to sell derivative products. But in any event Category (B) claims, as Lord Browne-Wilkinson demonstrated, involve the assertion of either a cause of action for breach of statutory duty or a cause of action at common law. At pages 734 – 735 Lord Browne-Wilkinson said this:-

"In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient."
This leaves Category (C) claims. Of these Lord Browne-Wilkinson said, at page 735:-

"(C) The common law duty of care
In this category, the claim alleges either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act or (more often) that in the course of carrying out a statutory duty the defendant has brought about such a relationship between himself and the plaintiff as to give rise to a duty of care at common law. A further variant is a claim by the plaintiff that, whether or not the authority is itself under a duty of care to the plaintiff, its servant in the course of performing the statutory function was under a common law duty of care for breach of which the authority is vicariously liable."
This is of no relevance here for, as I have already pointed out, the Bank was not carrying out a statutory duty. More importantly however this analysis does not support the notion that the mere existence of a statutory duty of itself brings about the creation of a co-extensive common law duty. On the contrary, the analysis is inimical to any such notion. The existence of a statutory duty may give rise to a common law duty of care in circumstances where breach of the statutory duty is not actionable in private law. The more usual case is where in performance of a statutory duty a party, usually but not always a public authority, brings about a relationship between itself and another person such as is recognised to give rise to a duty of care owed to that person. Again, the duties are not co-extensive and the duty at common law does not arise by reason of the imposition of the statutory duty but arises out of the relationship so created.
I therefore reject the suggestion that the Bank here owed to Messrs Green and Rowley a common law duty of care which involved taking reasonable care to ensure that they understood the nature of the risks involved in entering into the swap transaction. The existence of the action for breach of statutory duty consequent upon contravention of a rule does not compel the finding of such a duty – indeed for the reasons I have already given it rather tells against it. Mr Berkley's further argument that such a cause of action would afford protection to those who, not being a "private person" cannot avail themselves of a cause of action for breach of statutory duty, is an invitation to the court to drive a coach and horses through the intention of Parliament to confer a private law cause of action upon a limited class. Equally misconceived was his argument in reply that those who begin life as "Category A" claimants should be protected after expiry of the relevant period of limitation by a small incremental development of the circumstances recognised to give rise to a duty of care at common law.

Accordingly I would dismiss this appeal. The Financial Conduct Authority was given leave to intervene in the appeal in order to make submissions upon the issue which does not in the event arise, whether the judge was right to conclude that the Bank did not in any event contravene COB Rule 2.1.3 or 5.4.3. The parties, including the Financial Conduct Authority, were agreed that, the court having indicated after argument on the first ground that it intended to dismiss the appeal on that ground, it is inappropriate to express any view on a conclusion which was also, as I have already remarked, unnecessary to the judge's decision. Accordingly, we heard no argument on this further issue and I express no view about it.

Lady Justice Hallett :

I agree.

Lord Justice Richards :

I also agree. 

 

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